State spends $34,000 so far defending Gessler in ethics probe

Feb. 26, 2013

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Scott Gessler

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The state of Colorado has paid more than $34,000 to private law firms hired to defend Secretary of State Scott Gessler against an ethics complaint that he misused public funds.

Collectively, the three lawyers from separate firms representing Gessler each are billing the state the dicounted rate of $190 an hour and also are billing for their paralegals’ work, according to their agreements with the Colorado Department of State.

The Secretary of State’s Office hired lawyers David Lane, Robert Bruce and Michael Davis in November to defend Gessler against an ethics complaint brought by left-leaning Colorado Ethics Watch.

The Department of State has paid $32,205 to Davis’ firm, $1,836 to Bruce’s firm and is awaiting billing from Lane. Payments are coming from the legal fund of the Department of State, which is funded by filing fees paid by businesses.

“We believe (Gessler’s) unrestrained use of public funds for his personal ethics case is just another example of the misconduct we asked the IEC to investigate,” said Luis Toro, executive director of Colorado Ethics Watch.

Gessler, a Republican whose policies have been a lightning rod for criticism from the left, has argued from the start that the complaint against him was motivated by partisan politics. He said Colorado Ethics Watch, which has financial ties to Democratically oriented Citizens for Responsibility and Ethics in Washington is to blame for the public funds that the Department of State is spending on private law firms.

“Unfortunately, Luis Toro uses this partisan, political tactic to attack Republicans,” said Gessler’s spokesman Rich Coolidge. “His group did the same thing to attack Republican Secretary of State Mike Coffman.”

The state spent $75,000 on lawyers to defend Coffman, now a congressman, against a complaint by Colorado Ethics Watch in 2008 alleging he allowed an employee to operate a partisan side business. The Independent Ethics Commission cleared Coffman of wrongdoing.

“Only in Colorado do we provide public officials with a full defense at public expense while people who file complaints have to raise funds privately to participate,” Toro said.

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Critics on the right contend that organizations such as Ethics Watch have little room to complain about high-powered lawyers entering the fray because of the money that supports them. But Toro responded that whistleblowers in general — average citizens in particular — are at a disadvantage in the Colorado ethics accountability structure.

“The process should not be so burdensome that only Ethics Watch can file an ethics complaint,” he said.

The Colorado Attorney General’s Office could not represent Gessler in the complaint against him because the case is being considered by the state’s Independent Ethics Commission, which relies on the attorney general’s office for legal counsel.

Gessler’s lawyers challenged the commission’s authority to investigate the complaint, but District Judge Herbert Stern ruled that the commission is within its authority.

The complaint against Gessler alleges he inappropriately spent public funds to attend partisan events in Florida last August, including the Republican National Convention. It also targets Gessler’s request for and acceptance of the fiscal-year-end balance from his office’s discretionary fund without supporting documentation of expenses.

Gessler twice emptied the balance for a total of more than $1,500 without submitting receipts for expenses he incurred. Gessler contends that spending on the August trip and the payments he received were justified. In documents responding to the ethics complaint against him, he has produced receipts that he says support his reimbursement from the discretionary fund.

In addition to the ethics complaint, Colorado Ethics Watch filed a complaint with the Denver District Attorney’s Office accusing Gessler of embezzlement, official misconduct and falsifying a public record.

The Denver District Attorney’s Office has said it would investigate the allegations, prompting Gessler to ask the Independent Ethics Commission whether he could establish a legal defense fund to accept donations that would help ward off any possible criminal case. Unlike the ethics arena, public funds cannot be used for that purpose.

The ethics commission is mulling how a legal defense fund fits with the Colorado Constitution’s $53 annual limit on gifts to public officials. Its decisions on that request and the complaint against Gessler are pending.